Mu?oz Oral Argument: Marriage as a Constitutional Right, & Consular Nonreviewability

Ms. Mu?oz, a US citizen, has been married to her husband from El Salvador for almost 14 years. She got an approved marriage petition on his behalf, but his immigrant visa was denied, based on a catch-all section ground of inadmissibility, 8 USC 1182(a)(3)(A)(ii), ?that bars a foreign national if a Consular Officer has reason to believe that he seeks to enter the US to engage in “any other unlawful activity”. ?The DOS visa denial only cited the section of the statute, and did not provide any factual basis for the denial. After years of litigation, DOS finally apprised Ms. Mu?oz and her husband that he was denied because they believed he may be a member of MS-13, the dreaded Transnational Criminal Organization.? Once the US government accuses you of being a member of MS-13, where do you go to get your reputation back?? This ground of inadmissibility does not require any conviction or any arrest, or even any proof, as it is just a “reason to believe” ground.

On April 23, 2024, the Supreme Court held a fascinating oral argument on the issues in Dept of State v. Mu?oz, Docket No. 23-334.

Unfortunately, the long-standing doctrine of consular nonreviewability has been hobbling US citizen petitioners and there family members from suing the Department of State (DOS) for visa denials.? In a nutshell, the doctrine of consular nonreviewability says that there generally should not be any judicial review of visa denials, as decisions on visas and entry into the US are part of the federal government’s plenary power over foreign policy and diplomacy, as well as protecting our borders. Even should there be an exception, a US citizen petitioner is only entitled to a facially legitimate and bona fide reason for the denial. We will not go into all the details here.

The case before the US Supreme Court involves only limited issues. Does the US citizen wife of a foreign national have any Constitutional right to live with her spouse in the US and sue the State Dept if his immigrant visa is denied?? Assuming she does have a liberty interest in her marriage protected by the Due Process clause of the US Constitution, and the doctrine of consular nonreviewability does not bar her suit, what remedy should the federal courts provide? Is there only a right to notice of the reason for denial of an immigrant visa, or also an opportunity to be heard, i.e. to be provided enough factual information in order to be able to provide the State Department information to rebut incorrect factual findings?

This case only involved a cause of action under the Due Process clause of the Constitution, thus there was no argument on any statutory right, APA (Administrative Procedure Act) or other statutory claim. The case may be limited to constitutional claims. Additionally, it only involves visa denials, not Mandamus or APA delay claims.

The Government started with an extreme position that the USC wife had no protected liberty interest under the Due Process clause to live with her husband, and that there was no reviewability by a federal court of an immigrant visa denial, due to the doctrine of consular nonreviewability.

Justice Sotomayor pointed out that the federal courts have long recognized marriage as a special right and more than a simple contract, since the 1880s: “In 1923, this Court described in one breath the right "to marry, establish a home, and bring up children, and that right is one long recognized at common law as essential to the orderly pursuit of happiness by free men." That's our Meyer case. In Loving versus Virginia, we said marriage is fundamental. In United States versus Windsor, we said marriage is more than a routine classification for purposes of certain statutory benefits…”

She pointed out that in Kleindienst v Mandel, 408 U.S. 753 (1972) and Trump v Hawaii, 585 US __(2018), ?the Supreme Court has recognized judicial review in visa denials where a Constitutional right is involved, although only limited review.

Justice Roberts repeatedly voiced the concern of how would you weight the liberty interest in marriage versus the government’s interest in national security?? Justice Kavanaugh asked what particular law enforcement or national security problems would arise if more was required of DOS than just a statutory citation, if they were also required to provide a factual basis for the denial? When the Government provided a general answer, stating “sensitivities”, Kavanaugh pressed for something more specific.? The Ninth Circuit had found that DOS had to provide more information than just a statutory cite, but not so much that would reveal the Government’s intelligence.

Justice Jackson pointed out that, in contrast to the Mu?oz case where a very general catch-all term “any other unlawful activity” was the basis for denial, Kerry v Din, 576 US 86 (2015), involved the much more specific terrorism bars so that the statutory section itself provided notice of the activity giving rise to the visa denial, while the vague phrase “any other unlawful activity” is too vague and general to be of any help in providing notice to the applicant.

Justice Thomas, on the other hand, seemed skeptical that there was any distinction between the Kerry v Din case and the Mu?oz case and said that since the Supreme Court had not found a liberty interest in marriage there, there would be no reason to find it in the Mu?oz case.

Justice Gorsuch honed in on, assuming there is a liberty interest in marriage, and the USC spouse is entitled to relief, what exactly would be the remedy that a federal court should order?? If the District Court cannot order the husband into the country, what other relief can a court order?? The attorney for Ms. Mu?oz argued that she is not just intitled to notice of the basis for denial, but also to be provided enough information in order to rebut the finding, and to have an opportunity to be heard.

There was a lot of discussion and questioning also by Justices Alito and Barrett, regarding if the Court decided to fashion a remedy, what would the appropriate remedy be? Is the goal just to provide notice to the denied applicant of the reason for denial?? Or is the goal to provide enough information to the applicant so he or she can then have the opportunity to challenge the determination by submitting evidence to rebut it?

Justice Barrett said that Mandel provides for a right to notice, but not an opportunity to be heard, i.e., to rebut whatever finding the Government has made.

Justice Roberts voiced the concern of how do you weigh two competing and “totally disparate and perhaps unweighable interests”, the liberty interest in marriage versus the Government’s interest in national security?

Justice Alito pointed out the difficulties of determining just exactly how much information DOS was obliged to provide regarding the visa denial:

"…you say you're entitled to something. And that something could be, A, the --the State Department says we believe he's involved in criminal activity. B, we believe he's a member of a gang. C, we believe he's a member of a particular gang. D, we believe he's a member of MS-13. E, this is why we believe that he's a member of MS-13. F, if I'm getting my numbers straight, we believe that, and you have an opportunity to rebut it. Now how do we determine which of those is what you get, unless we're weighing one thing against another?

MR. LEE: By looking to what the Department of Homeland Security does domestically."

?See, SupremeCourt.gov, Oral Argument, Dept of State v. Mu?oz

However, the question of just how much information USCIS provides to denied applicants did not seem to be answered. Will the US SUpreme Court modify the doctrine of consular nonreviewability or at least require that DOS provide enough of a factual basis so the applicant has the opportunity to rebut a negative finding? We wait with baited breath!

Copyright 2024 ?? Heidi J Meyers, all rights reserved. This article is for informational purposes only and is not meant as legal advice.

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